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The Tennessean

Linda O'Neal, executive director of the Tennessee Commission on Children and Youth

Chancellor Carol McCoy / Jeanne Reasonover / File / The Tennessean

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Officials at the Department of Children’s Services say they have been working over the past three months to create a new process for releasing information to the public about children who died under their watch.

DCS’ legal and policy staff have been working since September to create rules that balance confidentiality of families with federal disclosure requirements, spokeswoman Molly Sudderth said Monday.

It’s unclear when those rules will be finalized or what they will look like when they are finished. Sudderth said legal confidentiality requirements prevent her from releasing any notes or meeting minutes about the new rules.

DCS has come under increasing scrutiny in recent months for its refusal to release more than bare details about children who died after being brought to the attention of the state’s $650 million child protection agency. DCS caseworkers had some contact with at least 73 children who subsequently died last year, according to the agency.

Lawmakers last week accused the agency of “secrecy” and called for a legislative committee to investigate. The agency is also facing two separate court battles — one in federal court brought by a children’s watchdog group and one in state court brought by The Tennessean and other media — for not releasing more information about the children. The state says it cannot release the records because of state and federal confidentiality laws.

But in numerous exchanges since September between DCS and The Tennessean, the agency made no mention it was working on new rules that may ultimately change its position on what information it will release.

The agency also did not mention the new rules in its public responses to lawmakers’ requests for similar information. And a series of letters and emails between DCS and the New York-based Children’s Rights group seeking similar information made no reference to any impending rule changes.

First public mention

The first time the new rules were discussed publicly was at a hearing a week ago over the media’s lawsuit in Davidson County Chancery Court. Deputy State Attorney General Janet Kleinfelter spoke about DCS staff working on possible changes.

Kleinfelter told the judge that the agency has been “in the process of developing rules as well as developing procedures for providing this information in a format that allows the public and everyone else to review the actions of the department while preserving the confidentiality that the legislature has mandated.”

Kleinfelter cited a state law that gives the department the authority to create such rules and asked that the judge allow the department to go ahead and do that before requiring it to open its records to the public.

“The General Assembly has given the department the authority in consultation with the Commission on Children and Youth to adopt rules and regulations that may be necessary to establish administrative and due process procedures for the disclosure of records and other information pursuant to this section,” Kleinfelter said, quoting the law in court.

But the Commission on Children and Youth has not been consulted, Executive Director Linda O’Neal said. “We would be glad to work with them in the development of such rules,” she said.

DCS spokeswoman Sudderth said a change in federal guidelines in early September prompted the agency to undertake an internal review of its policy on what records it can and can’t disclose.

Those guidelines came after the federal Administration for Children and Families released an updated manual for child welfare agencies that said states must develop procedures for the disclosure of information about child fatalities or near fatalities.

“The process so far has largely consisted of developing a legal position consistent with state law requirements that DCS protect children and families and federal disclosure mandates,” Sudderth noted in an email. “Obviously, legal and policy staff have been involved in this process. Any meeting notes or communication are privileged particularly because this is a matter of current litigation.”

In the meantime, Chancery Court Judge Carol McCoy said she would rule on the request by media groups to release children’s records as soon as possible.

A hearing is scheduled Jan. 25 in federal court over the New York-based Children’s Rights group’s efforts to open records.